Denny's Restaurant, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1970

186 N.L.R.B. 48 (N.L.R.B. 1970)

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denny's Restaurant , Inc.' and Local Joint Executive
Board of Culinary Workers and Bartenders, affiliat-
ed with Hotel, Motel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
Petitioner 2
Denny 's Restaurant , Inc., Employer and Petitioner and
Local Joint Executive Board of Culinary Workers
and Bartenders , affiliated with Hotel , Motel, and
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO. Cases 20-RC-9140 and
20-RM-1217
October 21, 1970
DECISION AND DIRECTION OF ELEC-
TIONS
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a consoli-
dated hearing was held before Bernard T. Hopkins,
Hearing Officer of the National Labor Relations
Board.
Following the hearing the parties filed briefs with
the Regional Director and thereafter, pursuant to
Section 102.67 of the Board's Rules and Regulations
and Statements of Procedure, Series 8, as amended,
the case was transferred to the Board for decision.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
On the entire record in this case, including the
briefs, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Joint Board is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Employer contends in its petition filed in
Case 20-RM-1217 that the Joint Board claims to
represent employees at three of its restaurants in
Oakland and one in Hayward, California, referred to
below. It asserts that these locations and its restaurant
I The name of the Employer appears as amended at the hearing
2 The name of the Union appears as stipulated in Case 20-RC-9140 at
the hearing
3 Union Exhs 1, 3, and 4 indicate that "Local Joint Executive Board of
Culinary Workers and Bartenders" and "Joint Executive Board of the
Hotel and Restaurant Employees and Bartenders International Union,
AFL-CIO, of Alameda County," are used interchangebly
4 Culinary Workers Alliance Local 31, Cooks' Union Local 228, and
Bartenders Union Local 52
5 Culinary Workers and Bartenders Local No 823.
at Emeryville, California, for which the Joint Board
filed a representation petition in Case 20-RC-9140,
constitute the only appropriate unit. However, it is
willing to have elections conducted at each location
should the Board determine separate units are
appropriate.
The Joint Board contends, in its petition filed in
Case 20-RC-9140, that a unit confined to employees
at Emeryville is an appropriate unit and that a five-
location unit is inappropriate. Moreover, it asserts
that it disclaims any interest in representing employ-
ees at locations other than Emeryville and thus the
RM petition must be dismissed.
The Joint Board, according to evidence in the
record,3 comprises various constituent local unions in
Alameda County, California, including three in
Oakland4 and one in Hayward.5 Sometime prior to
1969, these locals were parties to a collective-bargain-
ing agreement with the East Bay Restaurant Owners
Association, of which Prings' Coffee Shop and
Restaurant was a member. Following the Employer's
purchase of Pring's assets with a view to operating its
own restaurants at the former Prings' locations, the
Hayward local, and the Joint Board on behalf of the
Oakland locals, on January 29 and 31, 1969, notified
the Employer of the respective bargaining agreements
covering Prings' employees at Hayward and Oakland,
and requested bargaining. Following the Employer's
refusal on February 13 to recognize the Unions, the
Hayward local and the Joint Board, by letters of
February 20 and 21 containing identical language,
advised the Employer: "we expect to have our
representation rights with respect to these locations
recognized." On April 28, the Hayward local made a
further inquiry of the Employer as to when it intended
to open new restaurants at the Prings' locations at
Oakland and Hayward, referring to an unsuccessful
8(a)(5) charge filed by the Joint Board alleging that
the Employer unlawfully refused to recognize the
Oakland and Hayward locals. It appears that the
Employer did not reply. Thereafter, immediately
upon the Employer's opening of each of the four
restaurants, later encompassed in Case 20-RM-1217,
two of which at least are former Prings' restaurants,
picketing commenced under the sanction of the Joint
Board6 and continued without interruption to the
time of the hearing herein.?
The Joint Board filed its petition in Case
6 The dates of opening of the four locations and beginning of picketing
are Hayward, June 10, 1969, East 18th Street, Oakland, June 16, and 595
and 601 Hegenburger Road, Oakland, November 13 The Emeryville
location opened on July 15, 1969, but threatened picketing there never
materialized
7 The picket signs at the Oakland locations of the Employer read
"Unfair, this restaurant does not employ Union members from Cooks' 228,
Bartenders' 52, Culinary Workers' 31 Do not patronize this nonunion
restaurant " The sign at the Hayward location of the Employer is the same
except that the named union is Local 823 At the bottom of each sign in
186 NLRB No. 21
DENNY'S RESTAURANT, INC.
20-RC-9140 on January 9, 1970. The following day,
Calvarese, president of a Richmond, California,
Culinary Workers local which had lost an election at a
restaurant of the Employer at Pleasant Hill, Califor-
nia, which is outside Alameda County, appeared at
the Employer's Emeryville, Alameda County, restau-
rant encompassed in Case 20-RC-9140. Calvarese is
also the secretary-treasurer of the East Bay Coordi-
nating Committee, which includes the locals involved
in the picketing herein. (We observe that a copy of a
letter of August 25, 1969, from the attorney for the
Joint Board to the Company's attorney (Union Exh.
9) is marked for "Calvarese, Joint Board.") Calvarese
demanded of Fry, the Employer's area manager, that
the Employer sign a contract for each of the four
picketed locations, and referred to a future meeting
with the International Union at Las Vegas, Nevada,
at Which the picketing locals intended to obtain
recognition from the Employer.8 Fry refused to sign a
contract or recognize any union.
On January 23, 1970, the Employer filed the petition
in Case 20-RM-1217. On February 18 Calvarese
arranged a meeting between union and employer
representatives, including the president of one of the
Oakland picketing locals (Faber) and the president of
the Company (Butler). At the meeting held that day
Calvarese represented himself as the chairman of an
effort to organize the Employer and to obtain a "top
down" contract.9 Calvarese also tendered to Butler a
proposed contract.10 Butler refused to sign. Thereaft-
er, Calvarese arranged another meeting between
Butler and the International Union's president
(Miller), which was held on February 22, 1970, in Las
Vegas, Nevada. At this meeting Miller demanded of
Butler that the Employer sign a national contract with
the Union. ii Butler again refused to sign.
With respect to what happened at the meetings of
January 10 and February 18 and 22, 1970, we rely on
the testimony set forth above rather than Calvarese's
denials. The denials seem inconsistent with other facts
of record. Calvarese's denials of his attempt to secure
recognition are inconsistent with his other conduct,
such as arranging the Las Vegas meeting at which
recognition was requested by the International. It
seems apparent from the record that Calvarese's
interest in seeing the Joint Board and its constituent
locals obtain recognition at the picketed locations and
win the election at Emeryville arose not only from his
position as Joint Board representative, but also from
fine print is the legend "This is an advertising picket line and is not meant
to stop deliveries or to organize employees "
8 This is Fry's testimony
9 This is testimony by Director of Personnel Kostlan , who was also
present at the meeting as a representative of the Employer.
10 This is the testimony of both Kostlan and Calvarese
ii This is the testimony of Vice President for Finance Withers who was
also present at the meeting as an employer representative
49
that of secretary-treasurer of the East Bay Coordinat-
ing Committee, which was partially financed by the
picketing unions and was engaged in organizing
activities which included the Employer. The record
also shows that a representative of the East Bay
Coordinating Committee appeared at the picket line
at Hayward, and that the East Bay Labor Journal,
published by the Alameda County Labor Council, of
which the four picketing locals are members, referring
to the inception of the picketing, quoted the Joint
Board as saying that picketing would begin or was
ensuing at Emeryville, at Hayward, and at two of the
three Oakland locations, in which it later came to
pass, and that Faber, who was not only president of
one of the picketing Oakland locals but was also
president of the East Bay Coordinating Committee,
urged support of the picketing.
We therefore find that the initial demands by the
Joint Board or its constituent locals were for recogni-
tion at two of the four locations involved in the
subsequent picketing. We also find that the picketing
at all locations, in the absence of any evidence to the
contrary, and in the light of the reference to
Emeryville where the Joint Board seeks recognition,
to be for the same object of initial immediate
recognition. At no time did the Joint Board change
the character of such recognitional picketing, not-
withstanding the wording on the signs and the
Union's advice to other unions not to honor the picket
lines. Despite the asserted disclaimer by the Joint
Board at the hearing in Case 20-RM-1217, the same
picketing continued thereafter. Moreover, the testi-
mony of Fry, Kostlan, and Withers and the filing of
the petition at Emeryville further demonstrate that
the Union's object was and is to obtain a contract
from the Employer, including the four picketed
locations.
Accordingly, in the light of the above union
conduct, which is inconsistent with the Joint Board's
asserted disclaimer,12 we find that the Joint Board
never abandoned its original purpose in its picketing
through its constituent locals to obtain immediate
recognition from the Employer, and that the contin-
ued picketing and other conduct reveal the existence
of a question affecting commerce concerning the
representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.13
4. The Employer contends that the appropriate
12 See Alen & O'Hara Investments, Inc d/b/a Holiday Inn of Providence-
Downtown, 179 NLRB No. 58 We find no ment in the Joint Board's
further contention that the withdrawal or dismissal by the General Counsel
of charges filed by the Employer alleging violations of Section 8(b)(7)(C),
based on the picketing herein , precludes a finding of conduct inconsistent
with the Union's asserted disclaimer
13 Kenneth Wong, et a!, d/b/a Capitol Market No 1, 145 NLRB 1430,
1431-32
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit is one involving all five locations. However, it is
willing to have elections conducted in any one or all of
these locations. The Union contends that only single-
restaurant units are appropriate. The restaurants
involved herein are operated directly or indirectly by
the Employer from its La Mirada, California, head-
quarters through intermediate steps of supervision.
Separate area supervisors for Denny's Restaurants,
Sandy's Restaurants, and Sams Hofbrau, the restau-
rants involved at the five locations, are ultimately
responsible to the general manager for the coffee-shop
division, who has direct operational responsibility for
all the restaurants under his jurisdiction throughout
the United States. There is a separate manager for
each restaurant who reports directly to the appropri-
ate area supervisor. Each manager implements a labor
relations policy established on a companywide basis
at the La Mirada headquarters and, subject to such
overall policy, makes his own labor relations deci-
sions, in coordination with those of other managers.
Each manager recruits and hires employees, recom-
mends discharges, and grants time off. Each is also
engaged in local purchasing and inventory of opera-
tional items . There have been no transfers or
interchange of employees from one restaurant to
another.
In view of the autonomy each local manager
exercises over each restaurant and his discretion to
implement corporatewide labor relations policies as
he sees fit, his control over hiring, his authority to
recommend that employees be discharged, his author-
ity to grant time off for personal reasons, his
responsibility for the day-to-day operations of the
restaurant, the lack of any interchange of employees
between the restaurants, and their geographical
separation, we find that a single unit of all five
restaurants is not appropriate, and that each of the
five locations herein is an appropriate unit for the
14 Frisch's Big Boy Ili-Mar, Inc, 147 NLRB 551
15 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the elections should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear The, 156 NLRB 1236, N L.R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
purposes of collective bargaining within the meaning
of the Section 9(b) of the Act.14
The parties have not disputed the composition of
the units as described in the petitions filed. Accord-
ingly, we find that the following employees constitute
separate units appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
Unit I: All cooks, waitresses, dishwashers,
cashiers, busboys, cook trainees, bartenders, chefs,
carvers, and food handlers employed at Sandy's
Restaurant, 278 East 18th Street, Oakland, Cali-
fornia, excluding clerical employees, guards, and
supervisors as defined in the Act.
Unit II: All cooks, waitresses, dishwashers,
cashiers, busboys, cook trainees, bartenders, chefs,
carvers, and food handlers employed at Sandy's
Restaurant, 24895 Mission Boulevard, Hayward,
California, excluding clerical employees, guards,
and supervisors as defined in the Act.
Unit III- All cooks, waitresses, dishwashers,
cashiers, busboys, cook trainees, bartenders, chefs,
carvers, and food handlers employed at Denny's
Restaurant, 601 Hegenburger Road, Oakland,
California, excluding clerical employees, guards,
and supervisors as defined in the Act.
Unit IV: All cooks, waitresses, dishwashers,
cashiers, busboys, cook trainees, bartenders, chefs,
carvers, and food handlers employed at Sam's
Hofbrau, 595 Hegenburger Road, Oakland, Cali-
fornia, excluding clerical employees, guards, and
supervisors, as defined in the Act.
Unit V.• All cooks, waitresses, dishwashers,
cashiers and miscellaneous helpers employed at
Denny's Restaurant, East Shaw Boulevard and
Powell Streets, Emeryville, California, excluding
clerical employees, guards, and supervisors as
defined in the Act.
[Direction of elections 15 omitted from publication.]
by the Employer with the Regional Director for Region 20 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed